Law of Nations

BOOK 1, CHAPTER 19

Of Our Native Country, and Several Things That Relate to It

§ 211. What is our country.THE whole of the countries possessed by a nation and subject to its
laws, forms, as we have already said, its territory, and is the common
country of all the individuals of the nation. We have been obliged to
anticipate the definition of the term, native country, because our
subject led us to treat of the love of our country — a virtue so
excellent and so necessary in a state. Supposing, then, this definition
already known, it remains that we should explain several things that
have a relation to this subject, and answer the questions that naturally
arise from it.

§ 212. Citizens and natives.The citizens are the members of the civil society; bound to this society
by certain duties, and subject to its authority, they equally participate
in its advantages. The natives, or natural-born citizens, are those born
in the country, of parents who are citizens. As the society cannot exist
and perpetuate itself otherwise than by the children of the citizens,
those children naturally follow the condition of their fathers, and
succeed to all their rights. The society is supposed to desire this, in
consequence of what it owes to its own preservation; and it is
presumed, as matter of course, that each citizen, on entering into
society, reserves to his children the right of becoming members of it.
The country of the fathers is therefore that of the children; and these
become true citizens merely by their tacit consent. We shall soon see
whether, on their coming to the years of discretion, they may
renounce their right, and what they owe to the society in which they
were born. I say, that, in order to be of the country, it is necessary
that a person be born of a father who is a citizen; for, if he is born
there of a foreigner, it will be only the place of his birth, and not his
country.

§ 213. Inhabitants.The inhabitants, as distinguished from citizens, are foreigners, who are
permitted to settle and stay in the country. Bound to the society by
their residence, they are subject to the laws of the state while they
reside in it; and they are obliged to defend it, because it grants them
protection, though they do not participate in all the rights of citizens.
They enjoy only the advantages which the law or custom gives them.
The perpetual inhabitants are those who have received the right of
perpetual residence. These are a kind of citizens of an inferior order,
and are united to the society without participating in all its advantages. Their children follow the condition of their fathers; and, as
the state has given to these the right of perpetual residence, their
right passes to their posterity.

§ 214. Naturalization.A nation, or the sovereign who represents it, may grant to a foreigner
the quality of citizen, by admitting him into the body of the political
society. This is called naturalization. There are some states in which
the sovereign cannot grant to a foreigner all the rights of citizens, —
for example, that of holding public offices — and where, consequently,
he has the power of granting only an imperfect naturalization. It is
here a regulation of the fundamental law, which limits the power of the
prince. In other states, as in England and Poland, the prince cannot
naturalize a single person, without the concurrence of the nation,
represented by its deputies. Finally, there are states, as, for instance,
England, where the single circumstance of being born in the country
naturalizes the children of a foreigner.

§ 215. Children of citizens born in a foreign country.It is asked whether the children born of citizens in a foreign country
are citizens? The laws have decided this question in several countries,
and their regulations must be followed. By the law of nature alone,
children follow the condition of their fathers, and enter into all their
rights; the place of birth produces no change in this particular, and
cannot, of itself, furnish any reason for taking from a child what nature
has given him; I say "of itself," for, civil or political laws may, for
particular reasons, ordain otherwise. But I suppose that the father has
not entirely quitted his country in order to settle elsewhere. If he has
fixed his abode in a foreign country, he is become a member of
another society, at least as a perpetual inhabitant; and his children will
be members of it also.

§ 216. Children born at sea.As to children born at sea, if they are born in those parts of it that are
possessed by their nation, they are born in the country: if it is on the
open sea, there is no reason to make a distinction between them and
those who are born in the country; for, naturally, it is our extraction,
not the place of our birth, that gives us rights: and if the children are
born in a vessel belonging to the nation, they may be reputed born in
its territories; for, it is natural to consider the vessels of a nation as
parts of its territory, especially when they sail upon a free sea, since
the state retains its jurisdiction over those vessels. And as, according
to the commonly received custom, this jurisdiction is preserved over the vessels, even in parts of the sea subject to a foreign dominion, all
the children born in the vessels of a nation are considered as born in
its territory. For the same reason, those born in a foreign vessel are
reputed born in a foreign country, unless their birth took place in a
port belonging to their own nation; for, the port is more particularly a
part of the territory; and the mother, though at that moment on board
a foreign vessel, is not on that account out of the country. I suppose
that she and her husband have not quitted their native country to
settle elsewhere.

§ 217. Children born in the armies of the state.For the same reasons also, children born out of the country, in the
armies of the state, or in the house of its minister at a foreign court,
are reputed born in the country; for a citizen who is absent with his
family, on the service of the state, but still dependent on it, and
subject to its jurisdiction, cannot be considered as having quitted its
territory.

§ 218. Settlement.Settlement is a fixed residence in any place, with an intention of
always staying there. A man does not, then, establish his settlement in
any place, unless he makes sufficiently known his intention of fixing
there, either tacitly or by an express declaration. However, this
declaration is no reason why, if he afterwards changes his mind, he
may not transfer his settlement elsewhere. In this sense, a person
who stops at a place upon business, even though he stay a long time,
has only a simple habitation there, but has no settlement. Thus, the
envoy of a foreign prince has not his settlement at the court where he resides.

The natural, or original settlement, is that which we acquire by birth,
in the place where our father has his; and we are considered as
retaining it, till we have abandoned it, in order to choose another. The
acquired settlement (adscititium) is that where we settle by our own
choice.

§ 219. Vagrants.Vagrants are people who have no settlement. Consequently, those
born of vagrant parents have no country, since a man's country is the
place where, at the time of his birth, his parents had their settlement,
or it is the state of which his father was then a member, which comes
to the same point; for, to settle for ever in a nation, is to become a
member of it, at least as a perpetual inhabitant, if not with all the privileges of a citizen. We may, however, consider the country of a
vagrant to be that of his child, while that vagrant is considered as not
having absolutely renounced his natural or original settlement.

§ 220. Whether a person may quit his country.Many distinctions will be necessary, in order to give a complete
solution to the celebrated question, whether a man may quit his
country or the society of which he is a member — 1. The children are
bound by natural ties to the society in which they were born; they are
under an obligation to show themselves grateful for the protection it
has afforded to their fathers, and are in a great measure indebted to it
for their birth and education. They ought, therefore, to love it, as we
have already shown, to express a just gratitude to it, and requite its
services as far as possible, by serving it in turn. We have observed
above, that they have a right to enter into the society of which their
fathers were members. But every man is born free; and the son of a
citizen, when come to the years of discretion, may examine whether it
be convenient for him to join the society for which he was destined by
his birth. If he does not find it advantageous to remain in it, he is at
liberty to quit it, on making it a compensation for what it has done in
his favor,1 and preserving, as far as his new engagements will allow
him, the sentiments of love and gratitude he owes it. A man's
obligations to his natural country may, however, change, lessen, or
entirely vanish, according as he shall have quitted it lawfully, and with
good reason, in order to choose another, or has been banished from it
deservedly or unjustly, in due form of law or by violence.

2. As soon as the son of a citizen attains the age of manhood, and acts
as a citizen, he tacitly assumes that character; his obligations, like
those of others who expressly and formally enter into engagements
with society, become stronger and more extensive: but the case is
very different with respect to him of whom we have been speaking.
When a society has not been formed for a determinate time, it is
allowable to quit it, when that separation can take place without
detriment to the society. A citizen may therefore quit the state of
which he is a member, provided it be not in such a conjuncture when
he cannot abandon it without doing it a visible injury. But we must
here draw a distinction between what may in strict justice be done,
and what is honorable and conformable to every duty — in a word,
between the internal, and the external obligation. Every man has a
right to quit his country, in order to settle in any other, when by that
step he does not endanger the welfare of his country. But a good
citizen will never determine on such a step without necessity, or without very strong reasons. It is taking a dishonorable advantage of
our liberty, to quit our associates upon slight pretenses, after having
derived considerable advantages from them; and this is the case of
every citizen, with respect to his country.
3. As to those who have the cowardice to abandon their country in a
time of danger, and seek to secure themselves, instead of defending
it, they manifestly violate the social compact, by which all the
contracting parties engaged to defend themselves in a united body,
and in concert; they are infamous deserters, whom the state has a
right to punish severely.2

§ 221. How a person may absent himself for a time.In a time of peace and tranquillity, when the country has no actual
need of all her children, the very welfare of the state, and that of the
citizens, requires that every individual be at liberty to travel on
business, provided that he be always ready to return, whenever the
public interest recalls him. It is not presumed that any man has bound
himself to the society of which he is a member, by an engagement
never to leave the country when the interest of his affairs requires it,
and when he can absent himself without injury to his country.

§ 222. Variation of the political laws in this respect, These must
be obeyed.The political laws of nations vary greatly in this respect. In some
nations, it is at all times, except in case of actual war, allowed to every
citizen to absent himself, and even to quit the country altogether,
whenever he thinks proper without alleging any reason for it. This
liberty, contrary in its own nature to the welfare and safety of society,
can nowhere be tolerated but in a country destitute of resources and
incapable of supplying the wants of its inhabitants. In such a country
there can only be an imperfect society; for civil society ought to be
capable of enabling all its members to procure, by their own labor and
industry, all the necessaries of life: unless it effects this, it has no right
to require them to devote themselves entirely to it. In some other
states, every citizen is left at liberty to travel abroad on business, but
not to quit his country altogether, without the express permission of
the sovereign. Finally, there are states where the rigor of the
government will not permit any one whatsoever to go out of the
country without passports in form, which are even not granted without
great difficulty. In all these cases, it is necessary to conform to the
laws, when they are made by a lawful authority. But, in the lastmentioned
case, the sovereign abuses his power, and reduces his subjects to an insupportable slavery, if he refuses them permission to
travel for their own advantage, when he might grant it to them without
inconvenience, and without danger to the state. Nay, it will presently
appear, that, on certain occasions, he cannot, under any pretext,
detain persons who wish to quit the country, with the intention of
abandoning it for ever.

§ 223. Cases in which a citizen has a right to quit his country.There are cases in which a citizen has an absolute right to renounce
his country, and abandon it entirely — a right founded on reasons
derived from the very nature of the social compact. 1. If the citizen
cannot procure subsistence in his own country, it is undoubtedly lawful
for him to seek it elsewhere. For, political or civil society being entered
into only with a view of facilitating to each of its members the means
of supporting himself, and of living in happiness and safety, it would
be absurd to pretend that a member, whom it cannot furnish with such
things as are most necessary, has not a right to leave it.
2. If the body of the society, or he who represents it, absolutely fail to
discharge their obligations towards a citizen, the latter may withdraw
himself. For, if one of the contracting parties does not observe his
engagements, the other is no longer bound to fulfill his; as the
contract is reciprocal between the society and its members. It is on the
same principle, also, that me society may expel a member who
violates its laws.
3. If the major part of the nation, or the sovereign who represents it,
attempt to enact laws relative to matters in which the social compact
cannot oblige every citizen to submission, those who are averse to
these laws have a right to quit the society, and go settle elsewhere.
For instance, if the sovereign, or the greater part of the nation, will
allow but one religion in the state, those who believe and profess
another religion have a right to withdraw, and take with mem their
families and effects. For, they cannot be supposed to have subjected
themselves to the authority of men, in affairs of conscience;3 and if
the society suffers and is weakened by their departure, the blame
must be imputed to the intolerant party; for it is they who fail in their
observance of the social compact — it is they who violate it, and force
the others to a separation. We have elsewhere touched upon some
other instances of this third case, — that of a popular state wishing to
have a sovereign, and that of an independent nation taking the
resolution to submit to a foreign power.

§ 224. Emigrants.Those who quit their country for any lawful reason, with a design to
settle elsewhere, and take their families and property with them, are
called emigrants.

§ 225. Sources of their rightTheir right to emigrate may arise from several sources. 1. In the cases
we have just mentioned, it is a natural right, which is certainly
reserved to each individual in the very compact itself by which civil
society was formed.
2. The liberty of emigration may, in certain cases, be secured to the
citizens by a fundamental law of the state. The citizens of Neufchatel
and Valangin in Switzerland may quit the country and carry off their
effects at their own pleasure, without even paying any duties.
3. It may be voluntarily granted them by the sovereign.
4. This right may be derived from some treaty made with a foreign
power, by which a sovereign has promised to leave full liberty to those
of his subjects, who, for a certain reason — on account of religion, for
instance — desire to transplant themselves into me territories of that
power. There are such treaties between the German princes,
particularly for cases in which religion is concerned. In Switzerland
likewise, a citizen of Bern who wishes to emigrate to Fribourg, and
there profess the religion of the place, and, reciprocally, a citizen of
Fribourg who, for a similar reason, is desirous of removing to Bern,
has a right to quit his native country, and carry off with him all his
property.
It appears from several passages in history, particularly the history of
Switzerland and the neighboring countries, that the law of nations,
established there by custom some ages back, did not permit a state to
receive the subjects of another state into the number of its citizens.
This vicious custom had no other foundation than the slavery to which
the people were then reduced. A prince, a lord, ranked his subjects
under the head of his private property; he calculated their number as
he did that of his flocks; and, to the disgrace of human nature, this
strange abuse is not yet everywhere eradicated.

§226. If the sovereign infringes their right, he injures them.If the sovereign attempts to molest those who have a right to
emigrate, he does them an injury; and the injured individuals may
lawfully implore the protection of the power who is willing to receive them. Thus we have seen Frederic William, king of Prussia, grant his
protection to the emigrant Protestants of Saltzburgh.

§227. Supplicants.The name of supplicants is given to all fugitives who implore the
protection of a sovereign against the nation or prince they have
quitted. We cannot solidly establish what the law of nations
determines with respect to them, until we have treated of the duties of
one nation towards others.

§ 228. Exile and banishment.Finally, exile is another manner of leaving our country. An exile is a
man driven from the place of his settlement, or constrained to quit it,
but without a mark of infamy. Banishment is a similar expulsion, with
a mark of infamy annexed.4 Both may be for a limited time, or for
ever. If an exile, or banished man, had his settlement in his own
country, he is exiled or banished from his country. It is, however,
proper to observe that common usage applies also the terms exile and
banishment to the expulsion of a foreigner who is driven from a
country where he had no settlement, and to which he is, either for a
limited time, or for ever, prohibited to return.
As a man may be deprived of any right whatsoever by way of
punishment — exile, which deprives him of the right of dwelling in a
certain place, may be inflicted as a punishment: banishment is always
one; for, a mark of infamy cannot be set on any one, but with a view
of punishing him for a fault, either real or pretended.
When the society has excluded one of its members by a perpetual
banishment, he is only banished from the lands of that society, and it
cannot hinder him from living wherever else he pleases; for, after
having driven him out, it can no longer claim any authority over him.
The contrary, however, may take place by particular conventions
between two or more states. Thus, every member of the Helvetic
confederacy may banish its own subject out of the territories of
Switzerland in general; and in this case the banished person will not
be allowed to live in any of the cantons, or in the territories of their
allies.
Exile is divided into voluntary and involuntary. It is voluntary, when a
man quits his settlement to escape some punishment, or to avoid
some calamity — and involuntary, when it is the effect of a superior
order.

Sometimes a particular place is appointed, where the exiled person is
to remain during his exile; or a certain space is particularized, which
he is forbid to enter. These various circumstances and modifications
depend on him who has the power of sending into exile.

§ 229. The exile and banished man have a right to live
somewhere.A man, by being exiled or banished, does not forfeit the human
character, nor consequently his right to dwell somewhere on earth. He
derives this right from nature, or rather from its Author, who has
destined the earth for the habitation of mankind; and the introduction
of property cannot have impaired the right which every man has to the
use of such things as are absolutely necessary — a right which he
brings with him into the world at the moment of his birth.

§ 230. Nature of this right.But though this right is necessary and perfect in the general view of it,
we must not forget that it is but imperfect with respect to each
particular country. For, on the other hand, every nation has a right to
refuse admitting a foreigner into her territory, when he cannot enter it
without exposing the nation to evident danger, or doing her a manifest
injury, what she owes to herself, the care of her own safety, gives her
this right; and, in virtue of her natural liberty, it belongs to the nation
to judge, whether her circumstances will or will not justify the
admission of that foreigner. He cannot, then, settle by a full right, and
as he pleases, in the place he has chosen, but must ask permission of
the chief of the place; and, if it is refused, it is his duty to submit.

§ 231. Duty of nations towards them.However, as property could not be introduced to the prejudice of the
right acquired by every human creature, of not being absolutely
deprived of such things as are necessary — no nation can, without
good reasons, refuse even a perpetual residence to a man driven from
his country. But, if particular and substantial reasons prevent her from
affording him an asylum, this man has no longer any right to demand
it — because, in such a case, the country inhabited by the nation
cannot, at the same time, serve for her own use, and that of this
foreigner. Now, supposing even that things are still in common,
nobody can arrogate to himself the use of a thing which actually
serves to supply the wants of another. Thus, a nation, whose lands are
scarcely sufficient to supply the wants of the citizens, is not obliged to
receive into its territories a company of fugitives or exiles. Thus, it
ought even absolutely to reject them, if they are infected with a contagious disease. Thus, also, it has a right to send them elsewhere,
if it has just cause to fear that they will corrupt the manners of the
citizens, that they will create religious disturbances, or occasion any
other disorder, contrary to the public safety. In a word, it has a right,
and is even obliged to follow, in this respect, the suggestions of
prudence. But this prudence should be free from unnecessary
suspicion and jealousy; it should not be carried so far as to refuse a
retreat to the unfortunate, for slight reasons, and on groundless and
frivolous fears. The means of tempering it will be, never to lose sight
of that charity and commiseration which are due to the unhappy. We
must not suppress these feelings even for those who have fallen into
misfortune through their own fault. For, we ought to hate the crime,
but love the man, since all mankind ought to love each other.

§ 232. A nation cannot punish them for faults committed out of
its territories.If an exiled or banished man has been driven from his country for any
crime, it does not belong to the nation in which he has taken refuge to
punish him for that fault committed in a foreign country. For, nature
does not give to men or to nations any right to inflict punishment,
except for their own defense and safety; whence it follows that we
cannot punish any but those by whom we have been injured.

§ 233. Except such as affect the common safety of mankind.But this very reason shows, that, although the justice of each nation
ought in general to be confined to the punishment of crimes
committed in its own territories, we ought to except from this rule
those villains, who, by the nature and habitual frequency of their
crimes, violate all public security, and declare themselves the enemies
of the human race. Poisoners, assassins, and incendiaries by
profession, may be exterminated wherever they are seized; for they
attack and injure all nations by trampling under foot the foundations of
their common safety. Thus, pirates are sent to the gibbet by the first
into whose hands they fall. If the sovereign of the country where
crimes of that nature have been committed, reclaims the perpetrators
of them, in order to bring them to punishment, they ought to be
surrendered to him, as being the person who is principally interested
in punishing them in an exemplary manner. And as it is proper to have
criminals regularly convicted by a trial in due form of law, this is a
second reason for delivering up malefactors of that class to the states
where their crimes have been committed.

1. This is the foundation of the tax paid on quitting a country, called, in Latin,
census emigrationis.2. Charles XII. condemned to death and executed General Patkul, a native of
Livonia, whom he had made prisoner in an engagement with the Saxons. But the sentence
and execution were a violation of the laws of justice. Patkul, it is true, had been born a
subject of the king of Sweden; but he had quitted his native country at the age of twelve
years, and having been promoted in the army of Saxony, had, with the permission of his
former sovereign sold the property he possessed in Livonia. he had therefore quitted his
own country, to choose another (as every free citizen is at liberty to do, except, as we
have observed above, at a critical moment, when the circumstances of his country require
the aid of all her sons), and the king of Sweden, by permitting him to sell his property,
had consented to his emigration.3. See above, the chapter on Religion.4. The common acceptation of these two terms is not repugnant to our application of
them. The French academy says, "Banishment is only applied to condemnations indue
course of law. Exile is only an absence caused by some disgrace at court." The reason is
plain: such a condemnation from the tribunal of justice entails infamy on the emigrant;
whereas a disgrace at court does not usually involve the same consequence.